In March 2009, David Bourke (52) was sentenced to life imprisonment by Mr Justice Barry White after a Central Criminal Court jury found him guilty of the murder of his wife Jean Gilbert (46) at the home they shared at Laverna Dale, Castleknock, Dublin 15, on August 28, 2007.

The former insurance administrator had denied murder but admitted he stabbed his wife under severe provocation because she was going to leave him for another man.

Today at the Court of Criminal Appeal, counsel for Bourke, Michael O’Higgins SC, said that in essence the appeal came down to a net issue where it was contended that the trial judge gave a material misdirection to the jury on the law regarding the defence of provocation.

Mr Justice White, he said, had attempted to "rewrite the law on provocation".

He said the trial judge put it to the jury that they had to consider whether Bourke had carried out a calculated killing with intent to cause death or serious injury, in which case they could return a verdict of murder, or if the verdict could be reduced to manslaughter should they find Bourke was not master of his own mind and was so out of control he was not capable of acting rationally.

Mr O’Higgins submitted that this definition of provocation was "grossly wrong" and specifically excluded the possibility of the defence of provocation if the accused could form the intent.

He told the court it was clear from the transcript of the charge that in the judge’s mind the defence of provocation removed the mental element from the case, and in Mr Justice White’s own words "the intention to kill or cause serious injury is not there because the man is not in control of his mind".

During the trial, the court heard direct evidence from Bourke that he intended to cause his wife pain by stabbing her.

Mr O’Higgins argued that the authorities on the matter stated "as clear as day" that not only can an accused have intent to cause serious injury but that it is an integral part of the defence of provocation.

He said Mr Justice White was requisitioned on this point but "refused outright" to be influenced by the submission.

Mr O’Higgins said the judge's interpretation had been previously considered by the appeal court and had been "very robustly rejected" and submitted that the judge’s charge amounted to an attempt to "on the spot rewrite the law on provocation".

He said the authorities were "black and white" and it appeared that if a person was so out of control that they could not control their actions and could not form an intention they would not be criminally liable at all.

Mr O’Higgins said what Mr Justice White had described was akin to an irresistible impulse on behalf of a person to carry out an act without the necessary legal or medical appreciation of the nature and quality of their acts, which he submitted would lead to a verdict of not guilty by reason of insanity.

Ms Isobel Kennedy SC, for the State, countered that there was "absolutely" no misstatement or error in law on the part of the trial judge in the course of his charge to the jury.

She submitted that Mr Justice White gave an "admirable" charge in "crystal clear terms" where he "admirably" explained the issue of provocation to the jury in "very straightforward and understandable terms" and applied the relevant previous cases from both here and other jurisdictions.

Ms Kennedy said the issue as advanced by Mr O’Higgins was not raised during the original trial or at the requisition stage.

She said that even if the court were to say there was a misstatement on the law on provocation there could be no injustice on foot of the "overwhelming" evidence against Bourke to support a charge of murder.

Presiding judge Mr Justice John MacMenamin asked both parties whether it was open to the appeal court to reach a conclusion that the case was manslaughter or whether a retrial would follow in the event it found the conviction for murder was unsafe.

Mr O’Higgins said he was concerned that the issue as to whether provocation had led to a loss of control and whether the case was manslaughter would ultimately be for a jury to decide, while Ms Kennedy said that she would need to take instructions from the DPP on the matter and then argue her case.

Mr Justice MacMenamin, sitting with Mr Justice Eamon deValera and Mr Justice Brian McGovern, said the court would reserve its decision and deliver judgment in the new term.